Imploding Terror Cases

Editorial

Los Angeles Times

September 28, 2004

Saddam Hussein is getting fairer legal treatment than the U.S. citizens whom
the Bush administration has deemed "enemy combatants." After all, he has a
lawyer to represent him in his war-crimes trial — a whole legal team, in
fact. Also, charges have been filed against him, and he has already faced a
judge. That's more than alleged dirty-bomb plotter Jose Padilla can say.

Even some Bush administration officials now acknowledge that the
strong-arm tactics they adopted three years ago to catch and prosecute terror
suspects have backfired. Last week, conceding it had no case, the government
simply released Yaser Esam Hamdi, an American citizen, rather than obey the U.S.
Supreme Court's order that he be allowed to challenge his long imprisonment.
The government's case against a Syrian-born U.S. airman accused of spying
collapsed last week as well, and even Pentagon officials now admit that the
military tribunals that began last month are so flawed they tarnish U.S.
credibility.

Although Geor ge W. Bush famously admits to no mistakes in
his terror policy, the need for changes is obvious and was so even before the
Supreme Court required it.

Hamdi, captured in Afghanistan after the
Sept. 11 attacks, and Padilla are the two American citizens deemed so dangerous
they were declared enemy combatants. For more than two years, Hamdi was locked
away in a military brig, much of that time in solitary confinement. Pentagon
officials permitted neither Hamdi nor Padilla to meet with a lawyer or with
family members, arguing that doing so might threaten national security.

Although no charges were filed against either man, neither has been able to
contest his open-ended detention.

Under the deal announced last week,
Hamdi will renounce his citizenship, agree to travel restrictions and promise
not to sue Uncle Sam for any injuries he sustained while confined. In return,
he faces no criminal charges, and he is scheduled to fly back to his family in
Saudi Arabia today.

Padilla still sits behind bars, but there seems
little question that when the Supreme Court considers his case, the justices
will not be amused by the administration's antics. Government lawyers will then
face the same choice they did with Hamdi — if they don't have enough
evidence to prosecute Padilla, they'll have to let him go.

The
government's case against Senior Airman Ahmad Al Halabi ended last week much
like Hamdi's, with a whimper.

In July 2003, the military arrested Al
Halabi, an Air Force interpreter at the Guantanamo detention facility, on
multiple spying charges, some that carried the death penalty. But last week,
acknowledging that the case didn't hold water, the military dropped the most
serious charges and waived jail time beyond the 295 days Al Halabi had already
served. In return, Al Halabi pleaded guilty to "minor infractions" like
mishandling classified documents and agreed to a bad-conduct discharge.

His is the third overcharged spying case to collapse. In March,
military officials dropped charges against an Army Muslim chaplain, and last
week they tossed out a case against an Army reservist.

More surprising
perhaps than either Hamdi's release or the imploding spy cases is growing
concern within the Pentagon that the military tribunals planned for Guantanamo
detainees look like the kangaroo courts many feared they would be.

The
administration could have chosen the time-tested court-martial system for the
600 or so terror suspects, or directed they be tried in federal criminal courts.
Instead, it chartered these ad hoc tribunals. Yet after the first tumultuous
and confused panel hearings last month, even some Pentagon officials agree there
must be changes if they are to be credible.

The problems couldn't be
more fundamental: Tribunal members, unlike court-martial panel members, serve
as both judge and jury. But because only the presiding officer has any
knowledge of the law, the other members defer to him, giving him
disproportionate influence. Most of the military officers on the five-member
panel have personal conflicts that render them far from impartial. Moreover,
unlike court-martial proceedings, there is no appeal from the tribunal's
judgment to an independent judiciary.

Facing a barrage of motions from
military defense lawyers as well as continuing criticism from domestic and
foreign human rights advocates, Pentagon officials now say that when the
tribunals resume in December, substantial changes will be in place.

A
far better decision would be to abandon these makeshift tribunals altogether.